Opinion
No. 41482.
February 1, 1960.
1. Homicide — "culpable negligence" which will justify conviction for manslaughter by culpable negligence.
"Culpable negligence" which will justify a conviction for manslaughter by "culpable negligence" means negligence of a higher degree than that which in civil cases is held to be gross negligence, and must be negligence so gross as to be tantamount to a wanton disregard of, or utter indifference to, the safety of human life, and so clearly evidenced as to place it beyond every reasonable doubt.
2. Homicide — culpable negligence — motor vehicles — jury was justified in finding defendant guilty of "culpable negligence."
Where, in prosecution for manslaughter by "culpable negligence," there was evidence that defendant drove his automobile at a speed of 55 to 65 miles an hour along a relatively narrow street in a thickly built-up residential neighborhood and that automobile struck and fatally injured child, jury was justified in finding that defendant was guilty of "culpable negligence."
3. Homicide — manslaughter — medical testimony as to cause of death is desirable but not always essential.
In prosecution for manslaughter by culpable negligence, medical testimony as to cause of death of deceased is desirable but not always essential.
4. Homicide — manslaughter — culpable negligence — evidence — State sufficiently established that child died as result of injuries sustained when struck by defendant's automobile — factual situation.
In prosecution for manslaughter by culpable negligence, the State sufficiently established that deceased child died as result of injuries sustained when struck by defendant's automobile, though physician was not asked what caused death of child, where child was found in unconscious condition immediately after being struck by automobile, and when she was rushed to hospital physician there found that she was comatose, and had severe head injuries, multiple abrasions and contusions, and that her pupils were dilated and did not react to light, and she died within an hour after being struck by automobile.
5. Manslaughter — culpable negligence — in operation of automobile — chart relating to brakes, while inadmissible, was not harmful error.
In such case, wherein there was no issue regarding faulty brakes, certain chart relating to brakes was irrelevant and should not have been admitted in evidence, but, from a consideration of the whole record, such error was not harmful.
Headnotes as approved by Gillespie, J.
APPEAL from the Circuit Court of Hinds County; LEON F. HENDRICK, Judge.
Pierce Waller, Jackson, for appellant.
I. The gist of the offense of involuntary manslaughter with a motor vehicle is criminal negligence, which must be wanton or reckless under circumstances implying danger to human life. It must be negligence so wanton or reckless as to be incompatible with the proper regard for human life. It must be shown that a homicide was not improbable under all the facts existing at the time, in order to sustain a conviction of criminal homicide attributable to negligence. In other words, culpable negligence should be defined as the conscious and wanton or reckless disregard of the probabilities of fatal consequences to others as a result of the wilful creation of an unreasonable risk to human life. Coleman v. State, 208 Miss. 612, 45 So.2d 240; Downs v. State, 206 Miss. 831, 41 So.2d 19; Hathorn v. State (Miss.), 82 So.2d 653; Henderson v. State, 199 Miss. 629, 25 So.2d 133; Hynum v. State, 222 Miss. 817, 77 So.2d 313; Reynolds v. State, 199 Miss. 409, 24 So.2d 781; Smith v. State, 197 Miss. 802, 20 So.2d 701, 161 A.L.R. 1; Sullivan v. State, 213 Miss. 14, 56 So.2d 93.
II. The appellant in this case was not guilty of negligence of a degree so gross as to be tantamount to a wanton disregard of, or utter indifference to, the safety of human life, and certainly it was not evidenced so clearly as to place it beyond every reasonable doubt. Downs v. State, supra; Goudy v. State, 203 Miss. 366, 35 So.2d 308; New Orleans v. Northeastern R. Co. v. Burge, 191 Miss. 303, 2 So.2d 825; Scott v. State, 183 Miss. 788, 185 So. 195; Shows v. State, 175 Miss. 604, 168 So. 862; Smith v. State, supra; Tombigbee Electric Power Assn. v. Gandy, 216 Miss. 444, 62 So.2d 567.
III. The trial court erred in admitting over the objections of appellant, State's exhibit No. 7, which is an advertisement of American Brakeshoe Company, and on which there appears a chart for determining the speed of a car from skid marks on the surface of the pavement.
IV. The trial court erred in granting State's Instruction No. 1 which is as follows: "The Court instructs the jury for the State that while it is true in this case, as in all criminal cases, the defendant is presumed to be innocent until he is proven guilty, and that this presumption of innocence goes with the defendant until he is proven guilty and that this presumption of innocence goes with the defendant throughout the trial, and until overcome by competent testimony, and that while it is further true, that the burden of proof in this case, as in all criminal cases, is upon the state to satisfy the minds of the jury of the guilt of the defendant from the evidence beyond a reasonable doubt, yet the Court now says to you that this presumption of innocence, which the law throws around the defendant as a shield and safeguard is not intended to shield from punishment anyone who is in fact guilty, but is simply a humane provision of law to guard against the conviction of any innocent person and the Court further says to you positively that if you believe from the evidence in this case beyond a reasonable doubt that the defendant is guilty as charged in the indictment then it is your sworn duty to say guilty by your verdict, regardless of the presumption of innocence and the further fact that the burden of proof is upon the State." Smith v. State, 161 Miss. 430, 137 So. 96; Williams v. State (Miss.), 14 So.2d 216.
V. The trial court erred in giving Instruction No. 2 for the State. The instruction is as follows: "The Court instructs the jury for the State of Mississippi that you are the sole judges of the credibility of the witnesses who testify in this case, and in determining what weight you should give the testimony of any witness, you have the rights to consider their demeanor upon the witness stand; what interest, if any, they have in the results of the trial, if it has been shown by the evidence they have any, and all other facts and circumstances in the evidence in this case." Chapman v. State, 102 Miss. 179; Coleman v. State, supra; Huey v. State (Miss.), 106 So. 361; Smith v. State, 90 Miss. 111, 43 So. 465.
VI. The trial court erred in giving for the State Instruction No. 5. This instruction is as follows: "The Court instructs the jury for the State, that criminal or culpable negligence is such gross negligence which under the circumstances then and there existing evidences a wanton, reckless and wilful disregard for human life, and a conscious and wanton and reckless disregard of the probabilities of fatal consequences to others as a direct result of the wilful creation of an unreasonable risk thereof, and, if you believe from all the evidence in this case, beyond a reasonable doubt, that at the time and place complained of, the defendant, was then and there guilty of such culpable negligence and as a direct result thereof, he, the defendant, drove his vehicle on a public street in the City of Jackson, Mississippi, and thereby collided with Patsy Taylor, and thereby inflicted upon the deceased injuries from which she immediately died as a proximate and necessary result of said injury; and, if you do believe from all the evidence in this case, beyond a reasonable doubt, that the defendant is guilty as charged in the indictment, then the jury should so find." Coleman v. State, supra.
VII. The trial court erred in giving the State's Instruction No. 6. The instruction is as follows: "The Court instructs the jury for the State that culpable negligence is that degree of negligence or carelessness which is denominated as gross and which constitutes such a departure from what would be the conduct of an ordinarily careful and prudent man under the same circumstances as to furnish evidence of indifference to the consequences." Smith v. State, supra.
G. Garland Lyell, Jr., Jackson, for appellee.
I. When the excess is so much above the legal rate of speed as to leave no doubt that the excess was distinctly intentional and wilful, it is, of course, culpable in its want of due care, so far as concerns any injury which proximately results therefrom; and this means that, where a death occurs as a proximate cause of the wilful excessive speed, and which probably would not have occurred had the lawful rate of speed been observed, the homicide resulting from the culpable negligence is manslaughter. Wilson v. State, 173 Miss. 372, 161 So. 744.
II. Greater negligence than this is hard to conceive unless accused intentionally and wilfully commits the act. Carraway v. Revell (Fla.), 116 So.2d 16; Hatcher v. State, 230 Miss. 257, 92 So.2d 552; Smith v. State, 233 Miss. 886, 103 So.2d 360.
III. Objections to admissibility of evidence must specifically point out the infirmity complained of. Otherwise the impropriety of the admission of evidence, if in truth improperly admitted, cannot be availed of for the first time of appeal. Holloway v. State, 199 Miss. 356, 24 So.2d 857; Johnson v. State, 196 Miss. 402, 17 So.2d 446; Kimbrell v. State, 178 Miss. 701, 174 So. 47; Roberds v. State (Miss.), 187 So. 755.
IV. When all of the instructions in this case are taken together, it will readily appear that the jury was thoroughly and properly instructed upon the law of the case. Coleman v. State, 208 Miss. 612, 45 So.2d 240; Reed v. State, 237 Miss. 23, 112 So.2d 533.
Bennie Moore was convicted of manslaughter by culpable negligence. He ran his automobile into and fatally injured Patricia Taylor, an eight year old child. The jury was justified under the evidence in finding the facts as next stated.
The fatal accident occurred in Jackson, Mississippi, about 75 feet south of the intersection of Ash Street, which runs east and west, and Palmyra Street, which runs north and south. Signs on Palmyra Street restrict speed to 30 miles per hour. Moore traveled this street frequently. It is a thickly inhabited area with only one vacant lot on the block where the accident occurred. There are no sidewalks on either side of Palmyra Street and the houses are relatively close together and close to the street. Palmyra Street is 23 feet 10 inches wide south of Ash Street. The weather was clear; the street was dry. The fatal accident occurred about 11:30 A.M. The deceased had been playing with other children in a yard on the east side of Palmyra Street and started to cross the street from east to west. She waited at the east curb until a northbound vehicle driven by Mrs. Dean passed. When Mrs. Dean reached a point about 120 feet north of Ash Street, she met Moore who was traveling south on Palmyra Street at a speed of 55 to 65 miles per hour. Just where the child was at about this time is not clear but the jury could infer that she was crossing Palmyra. At any rate, the inference is permissible that Moore could have seen the deceased. Moore saw the deceased in time to effectively apply his brakes beginning at the south line of Ash Street, from which point his automobile skidded all four wheels a distance of 140 feet where the right front end hit a telephone pole located near the west curb of Palmyra Street. When his automobile hit the telephone pole, it was knocked to the left and thence went in a semi-circle to the right, coming to rest headed west in a driveway leading west from Palmyra Street. After skidding about 84 feet south from the intersection, the right wheels of Moore's automobile jumped the west curb of Palmyra Street and continued skidding to the telephone pole with the left wheels in the street and the right wheels on the earth. The deceased was struck as the automobile was skidding about 75 feet south of the intersection of Ash and Palmyra Streets. Immediately after the accident the deceased was lying unconscious in the gutter near the telephone pole mentioned above. She died less than an hour later.
It would serve no purpose to set out Moore's testimony because the jury rejected it. The great weight of the evidence, including physical facts, contradicted his testimony.
Appellant assigns as error the action of the lower court in refusing a requested peremptory charge. This assignment of error raises two question: (1) Whether the proof established that appellant was guilty of that degree of negligence necessary under our decisions to sustain a verdict of manslaughter by culpable negligence, and (2) whether there was sufficient proof that the child died from the injuries sustained in the accident.
(Hn 1) Since the decision of this Court in Smith v. State, 197 Miss. 802, 20 So.2d 701, 161 A.L.R. 1, the rule has been that in order to give the term "culpable negligence" in the statute its proper setting it should be construed to mean negligence of a higher degree than that which in civil cases is held to be gross negligence, and must be negligence so gross as to be tantamount to a wanton disregard of, or utter indifference to, the safety of human life, and that this shall be so clearly evidenced as to place it beyond every reasonable doubt. See also Reynolds v. State, 199 Miss. 409, 24 So.2d 781; Brown v. State, 202 Miss. 202, 30 So.2d 802; Downs v. State, 206 Miss. 831, 41 So.2d 19; Coleman v. State, 208 Miss. 612, 45 So.2d 240; Sullivan v. State, 213 Miss. 14, 56 So.2d 93; Green v. State, 222 Miss. 510, 76 So.2d 513. The rule is an abstract one and other words and phrases have and may be employed to amplify it.
(Hn 2) In our opinion, the jury was fully justified in finding that the operation of an automobile at a speed of 55 to 65 miles an hour along a relatively narrow street in a thickly built up residential neighborhood constituted conduct incompatible with a proper regard for human life; and that a homicide was not improbable under all the facts existing at the time and place; and that appellant was guilty of culpable negligence as defined by the decisions of this Court.
(Hn 3) Appellant also contends that the State failed to show that Patricia Taylor died as a result of the injuries sustained in the accident. The child was playing with other children a short time before she was run down by appellant. Immediately after being struck by the automobile, she was found in an unconsicous condition. She was rushed to a hospital where the physician found she was comatose, had severe head injuries, including what appeared to be fractures at the base of the skull, and multiple abrasions and contusions; her pupils were dialated and did not react to light. She died within an hour after being struck. It is true that the physician was not asked what caused the death of Patricia Taylor. Medical testimony as to cause of death is desirable but not always essential. It was not essential in this case. (Hn 4) The child obviously and beyond any reasonable doubt died of the injuries sustained when she was struck by appellant's automobile. Cf. Watts v. State, 210 Miss. 236, 49 So.2d 240.
Appellant assigns as error the admission in evidence of a chart over the objection of appellant. He contends that this was reversible error because (1) it was an advertisement of a certain brake lining for automobiles, and (2) at the top in large letters were the words, "DRIVE CAREFULLY," followed by "KEEP YOUR BRAKES IN SAFE CONDITION." Appellant argues that this irrelevant matter was prejudicial and suggested if appellant had been driving carefully or had his brakes in safe condition, there would have been no fatal accident.
(Hn 5) We are of the opinion that the chart should not have been admitted, but it does not appear to us from a consideration of the whole record that the error was harmful. Therefore, it is not reversible error. Rule 11, Revised Rules of the Supreme Court. There was no issue regarding faulty brakes. The advertising material was itself irrelevant but we fail to see how it could have prejudiced appellant. The case was not a close one on the facts for the great weight of the evidence sustained the State's position.
We have reviewed several assignments of error based on the instructions and find no reversible error. After a careful review of the entire record and all contentions made by appellant we are of the opinion that the case should be and it is affirmed.
Affirmed.
McGehee, C.J., and Hall, Holmes and Ethridge, JJ., concur.